SALEEM Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS criminal revision has been directed against the judgment and order passed by learned Ist Additional Sessions Judge, Rampur in Criminal Appeal No. 9 of 1987 ( Saleem v. State ) under Section 9 of the Opium Act, P.S. Ganj, District Rampur. Lower court records have been received and are tagged with the file of this revision.

(2.) THE brief facts of the case are that the complainant of the case S.I. Raghunath Prasad was posted on 13.1.1982 at Police Station Katghar, District Moradabad. A case at Case Crime No. 867 of 1982 under Section 457, 380 and 411 I.P.C. was registered at his police station. The complainant gathered certain informations regarding the theft properties whereupon he went to Rampur and contacted the police of P.S. Ganj. It should be mentioned here that the complainant of the said case of theft was accompanying the said police officer. Two Sub Inspectors and some other police personnel of P.S. Ganj, Rampur accompanied the complainant and they went to a place where the suspected accused and stolen properties may be found. However, the main accused could not be apprehended but the revisionist Saleem was found at that place and at that time he was wearing a shirt said to have been stolen away in the abovementioned incident of theft. The said shirt was identified as such by the complainant of the theft case. The police party, with a hope to recover the theft articles from the residential house of the revisionist, went inside his house and the same was searched. No theft property was recovered from that place but a locked box was found. On inquiry, the revisionist allegedly told the complainant that the box belonged to him and he was having the key of the lock. On the instructions, the revisionist opened the box and on its search 1.25 Kg. of opium was recovered which was wrapped in a piece of cloth. The revisionist did not have any license to keep such opium in his possession and, therefore, according to the complainant, the said opium was illicit. An arrest and recovery memo was prepared at the spot. It should be mentioned here that before conducting the search of the house of the revisionist, two members from the locality were asked to participate in the search proceedings and they participated in the recovery process and viewed the same. An F.I.R. was lodged with the police of P.S. Ganj, Rampur. The matter was investigated and a chargesheet was filed in the court of learned Magistrate who took cognizance. The trial proceeded. Thereafter, the witnesses were examined and the trial before the Magistrate resulted in conviction of the revisionist. The learned Magistrate had passed the relevant judgment in Criminal Case No. 648 of 1983 ( State v. Saleem) on 12.1.1987. The revisionist was sentenced to two years' R.I. and a fine of Rs. 1000/ -was also imposed upon him. Feeling aggrieved by the said judgment and order of conviction, the revisionist filed an appeal before the learned Sessions Judge, Rampur which was registered as Criminal Appeal No. 9 of 1987. The said appeal was decided on 23.4.1987 by the learned Ist Addl. Sessions Judge. The appeal was dismissed and the conviction and sentence were confirmed. Feeling aggrieved by the said judgment and order passed in the appeal, the present revision has been preferred.

(3.) TWO important law points have been argued before me from the side of the revisionist. They are (i) no search warrant was obtained by the police before conducting the raid at the residential house of the revisionist as regards the recovery of the theft properties despite the fact that the I.O. of that case had ample opportunity to obtain such search warrant. Thus, the provisions of Sections 100 and 165 of Code of Criminal Procedure have been violated and (ii) nothing is there on record which may indicate that the opium said to have been recovered from the possession of the revisionist was ever sent for its chemical examination and on this point the findings of both the lower courts are perverse.